Davies, R. v

Where a sexual-offence complainant is eligible for special measures, the trial judge must decide whether a measure will improve the quality of the evidence and select the measure, or combination, most likely to maximise it. The witness’s view and the defendant’s ability to test the evidence are relevant. A merely speculative prospect that live evidence-in-chief might reveal differences from a recorded interview does not justify refusal.

A summing-up must be fair and balanced. Its effect is assessed cumulatively. Omissions, unsupported judicial comment and an unheralded allegation of lying may render convictions unsafe, even though no single error is decisive.

The appellant was tried in the Crown Court at Blackfriars on six counts of indecent assault alleged to have been committed against a child between 1985 and 1988. The jury convicted him on two counts, acquitted him on one, and did not reach verdicts on the remaining counts. He received concurrent sentences of two years’ imprisonment.

With leave of the single judge, he appealed his convictions. He challenged the use of the complainant’s Achieving Best Evidence interview as evidence-in-chief, the fairness of the summing-up, and the consistency of the jury’s verdicts. The central issue was whether those matters rendered the convictions unsafe.

1. Appeal allowed. The court quashed the convictions on the second ground. The cumulative effect of defects in the summing-up meant that the appellant had not received the fair and balanced summing-up to which he was entitled, and the convictions were unsafe.

2. The first ground failed. Under the Youth Justice and Criminal Evidence Act 1999, a sexual-offence complainant eligible for assistance was entitled to special measures unless she indicated otherwise. The judge had to decide whether a measure would improve the quality of her evidence and which measure, or combination, would maximise that quality, while considering her views and the effective testing of the evidence. The judge was entitled to permit the recorded interview to be played. A speculative possibility that live evidence-in-chief might differ from the interview was not an adequate reason to refuse that measure.

3. The summing-up was unfair when viewed as a whole. Although the judge could fairly describe the stark evidential conflict, he promised to address the defence criticisms of the complainant after setting out the prosecution case but did not do so. Other matters compounded the imbalance: comments about the father’s evidence, unsupported speculation about absent witnesses, failure to identify a material inconsistency in the complainant’s account, an unheralded third alleged lie in the Lucas direction, and a qualification which weakened the good-character direction. It was unnecessary to decide whether any individual matter would itself have made the convictions unsafe.

4. The third ground failed. Different verdicts on separate counts do not establish inconsistency unless there is no possible legitimate chain of reasoning to explain them. Applying WM [1999] 6 Archbold News 3, and the observation in G [1998] Crim L R 483, the court held that the jury could assess each incident separately. A complainant’s credibility is not indivisible, and the differing verdicts did not undermine the two convictions.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the convictions on counts 1 and 3: [2011] EWCA Crim 1177.
• Crown Court at Blackfriars: In October 2010, convicted the appellant on counts 1 and 3 of indecent assault and imposed concurrent terms of two years’ imprisonment on 11 October 2010.